Parts of the Uniform Commercial Code require that text be “conspicuous.” For example, section 2-316(2) states that a disclaimer of the implied warranty of merchantability must be conspicuous. Although section 1-201(10) of the UCC specifies that “language in the body of a form is ‘conspicuous’ if it is in larger or other contrasting type or color,” the UCC doesn’t say … Read More
[Updated 5 January 2016: Go here for my 2015 article on this topic under U.S. and English law; go here for my shorter 2015 article on this topic under U.S. law.] [Revised 11:00 p.m. EDT, May 23, 2012, to add that you should say “states the following facts.” Further revised 8:30 a.m. EDT, May 24, 2012, to change it to … Read More
An eagle-eyed reader who is aware of my long-standing interest in the phrase represents and warrants told me about a 2008 opinion of the Arizona U.S. District Court, Aspect Systems, Inc. v. Lam Research Corp. (Go here for a PDF copy.) Here’s the bit that the caught my reader’s eye: Neither Aspect nor Lam has proved the absence of a … Read More
[Updated 5:30 p.m. EDT, May 15, 2012, to revise what is now the next-to-last bullet point and add a new final bullet point, as well as supplement the closing sentence.] I find myself revisiting a favorite topic: stating in a contract how a nonparty is to act. (That something I explored most recently in this post about shall require.) Consider … Read More
[Revised 8:00 a.m. EDT, May 13, 2012, prompted by Mark Anderson’s comment and a good night’s sleep.] Consider the following, culled from the SEC’s EDGAR system: The Parties believe that the provisions of this Agreement are in compliance with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (“Section 409A”), as presently in effect, if and to … Read More
Behold commit to used to express obligations: each of the Guarantors hereby … commits to make a contribution to such Guarantor’s capital in an amount at least equal to The Employee commits to perform his/her duties pursuant to this Agreement on full time basis and not to engage in any other endeavors without the express permission of the Board of Directors of the … Read More
[Updated 13 September 2016] I recently picked up a useful tip from an unlikely source—one of my own webcasts. Osgoode Professional Development has been running my “Drafting Clearer Contracts” webcasts for a Canadian audience, and I’ve been on hand at the end of each webcast to answer any questions. I joined a bit early the webcast on categories of contract … Read More
[Updated March 2, 2015: For my most recent take on this subject, see this article.] I’ve previously written in this blog about why I recommend that one use shall in a disciplined manner rather than throw it under a bus. Discussion of this topic features prominently in chapter 2 of MSCD, as well as in my October 2007 NYLJ article. … Read More
Reader Mike told me about IpVenture, Inc. v. Prostar Computer, Inc. (Fed. Cir. Sept. 28, 2007). I’m delighted that he did, because it’s yet another case that I can point to in making the argument that to control your drafting you need to clearly distinguish one category of contract language from another. IpVenture owns and licenses patents on inventions relating … Read More
